Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15523/89

by Peter SCHMAUTZER

against Austria

The European Commission of Human Rights sitting in private on

10 May 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. C .L. ROZAKIS

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 May 1989 by

Peter Schmautzer against Austria and registered on 20 September 1989

under file No. 15523/89;

Having regard to;

- the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

8 November 1991 and the observations in reply submitted by the

applicant on 7 January 1992;

- the submissions of the parties at the oral hearing held on

10 May 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Austrian citizen born in 1942 who resides in

Graz, is a practising lawyer.

The facts of the case, as submitted by the parties, may be

summarised as follows:

A. Particular circumstances of the case

On 30 April 1986 the applicant was stopped by a policeman who

found that he was driving his car without wearing his safety belt. By

a penal order (Straferkenntnis) of 1 June 1987 the Federal Police

(Bundespolizeidirektion) in Graz imposed on the applicant a fine of AS

300, to be replaced by 24 hours' detention in case of default, for

having committed the offence of non-compliance with the car-driver's

duty to wear a safety belt according to Article III paras. 1 and 5 (a)

of the 3rd amendment to the Motor Vehicles Act (Kraftfahrgesetz). On

2 February 1988 the Provincial Governor (Landeshauptmann) of Styria

confirmed this decision while reducing the fine to AS 200 (to be

replaced by fourteen hours' detention in case of default).

The applicant filed a complaint (B 821/88) with the

Constitutional Court (Verfassungsgerichtshof) alleging, inter alia, a

violation of his rights under Articles 5, 6 and 8 of the Convention.

On 27 February 1989 the Constitutional Court rejected the

complaint as lacking prospects of success. It referred to an earlier

decision of 3 December 1988 (B 176/87) where it had held that the

imposition of administrative penal sanctions for failure to wear a

safety belt was not unconstitutional and did not infringe the

Convention. As regards Articles 5 and 6, the Constitutional Court

considered that the Austrian reservation concerning Article 5 applied,

notwithstanding that the administrative offence in question had been

introduced after the declaration of the reservation, because it was no

more than a logical development (systemkonforme Fortentwicklung) of

legal provisions which had existed at that time. In this context the

Constitutional Court referred to a number of offences included in the

Motor Vehicles Act 1955 which also pursued the aim of protecting the

life, health and safety of persons transported in motor vehicles.

As regards Article 8 of the Convention, the Constitutional Court

referred to Application No. 8707/79 (Dec. 13.12.79, D.R. 18, 255) where

the Commission had denied an interference with private life by an

obligation to wear safety belts.

The applicant's case was referred to the Administrative Court

(Verwaltungsgerichtshof), but the applicant did not pursue the

proceedings before that Court.

B. Relevant domestic law

The duty to wear a safety belt was introduced in 1976 by Article

III of the 3rd amendment to the 1955 Motor Vehicles Act. However, at

that time it was deliberately decided not to make non-compliance with

this duty an administrative offence. The legal consequences of

breaches of the duty were limited to civil law (coverage by insurance

etc.) It was only in 1984 that a further amendment to the Motor

Vehicles Act made the failure to comply with this duty an

administrative offence (Verwaltungsübertretung).

As far as relevant, Article III of the 3rd amendment to the Motor

Vehicles Act in the new version reads as follows:

"(1) Ist ein Sitzplatz eines Kraftfahrzeugs nach kraftfahrgesetzlicher

Anordnung mit einem Sicherheitsgurt ausgerüstet, so sind Lenker und

beförderte Personen, die einen solchen Sitzplatz benützen, je für sich

zum bestimmungsgemäßen Gebrauch des Sicherheitsgurts verpflichtet.

...

(5) Wer

(a) als Lenker eines Kraftfahrzeuges oder

(b) als mit einem Kraftfahrzeug beförderte Person die im Abs. 1 erster

Satz angeführte Verpflichtung nicht erfüllt, begeht ... eine

Verwaltungsübertretung, welche mit einer Organstrafverfügung gemäß §50

VStG 1950 mit einer Geldstrafe von 100 S zu ahnden ist. Wenn die

Zahlung des Strafbetrages ... verweigert wird ... ist von der Behörde

eine Geldstrafe bis zu 300 S, im Falle der Uneinbringlichkeit eine

Freiheitsstrafe bis zu 24 Stunden, zu verhängen."

(Translation)

"(1) If a seat of a motor vehicle is equipped with a safety belt

in accordance with the requirements of the Motor Vehicles Act,

the driver and the transported persons who use such a seat are

obliged to wear the safety belt in accordance with its intended

purpose ...

(5) Whoever fails to comply with the duty referred to in

para. 1

(a) as the driver of a motor vehicle or

(b) as a person transported by a motor vehicle commits an

administrative offence to be punished, by way of a provisional

penal order within the meaning of Section 50 of the 1950 Code of

Administrative Offences, with a fine of AS 100. If payment of

the fine is refused ... the authority [dealing with the case in

ordinary proceedings] may impose a fine of up to AS 300, to be

replaced, in case of default, by detention of up to 24 hours."

COMPLAINTS

1. The applicant complains that Articles 5 and 6 of the Convention

were violated in that a criminal sanction involving, inter alia, a

measure of deprivation of liberty was imposed on him in a procedure

which did not take place before an independent and impartial tribunal.

He claims that the Constitutional Court wrongly extended the scope of

the Austrian reservation concerning Article 5 of the Convention to an

offence which was created only after the declaration of the said

reservation.

2. The applicant further claims a violation of Article 8 of the

Convention, read both in isolation and in conjunction with Article 14,

in that the obligation to wear a safety belt interfered with his right

to respect for private life and a similar obligation did not exist for

persons who performed other dangerous acts.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 May 1989 and registered on

20 September 1989.

On 11 July 1991 the Commission decided to request the parties to

submit their written observations on the admissibility and merits of

the application.

The respondent Government submitted their observations after an

extension of the time-limit on 8 November 1991 and the applicant

submitted his observations on 7 January 1992.

On 15 February 1993 the Commission decided to hold an oral

hearing on the admissibility and merits of this case and Applications

Nos. 15527/89, 15963/90, 16713/90, 16718/90 and 16841/90.

At the hearing, which was held on 10 May 1993, the parties in the

present case were represented as follows:

For the Government:

Ambassador F. Cede Legal Adviser, Federal Ministry for Foreign

Affairs, Agent

Ms. S. Bernegger Federal Chancellery, Adviser

The applicant was present in person.

THE LAW

1. The applicant alleges violation of Articles 5 and 6

(Art. 5, 6) of the Convention in that the administrative criminal

proceedings in which he was fined for failure to wear a safety belt did

not comply with the requirements of the Convention. The Commission

notes that there is no indication in the present case that the

applicant was actually detained, and it will therefore deal with this

complaint exclusively under Article 6 (Art. 6) of the Convention.

The Government submit that the Austrian reservation to Article

5 (Art. 5) of the Convention prevents the Commission from entertaining

the complaint.

To the extent that the absence of an oral hearing is at issue,

they also rely on the Austrian reservation to Article 6 (Art. 6) of the

Convention. They also point out that the applicant did not make a

complaint about the absence of a hearing before the Administrative

Court.

They add that, although in its terms the reservation to Article

6 (Art. 6) merely applies to civil and criminal cases, it must also be

interpreted as covering proceedings before administrative authorities

which are to be regarded as tribunals within the meaning of Article 6

(Art. 6) of the Convention. They consider that if the Commission is

not prevented from considering the Article 6 (Art. 6) complaint by the

reservation to Article 5, then the review of the facts undertaken by

the Administrative Court pursuant to Section 42 (2) 3 (a) - (c) of the

Administrative Court Act is sufficient to comply with Article 6

(Art. 6) of the Convention. They accept that the review undertaken by

the Administrative Court is not unrestricted, but submit that it is

nevertheless very far-reaching, and they add that the Constitutional

Court also reviews cases, although in the light of different criteria.

The applicant considers that the reservation cannot apply to the

offence at issue in the present case because the legislation was not

in force when the reservation was made. He contends that the

administrative authorities which decided the present case are not

independent and impartial tribunals within the meaning of Article 6

(Art. 6) of the Convention. He further points out that Section 41 of

the Administrative Court Acts prohibits the submission of new evidence

to the Administrative Court, and that there is no provision for

examination by the Administrative Court of the assessment of the

evidence by the lower authority. The applicant, who is a lawyer,

states that he has never experienced a case in which the Administrative

Court has held an oral hearing in order to examine the assessment of

evidence, which shows that the Administrative Court's primary task is

to establish whether the lower authority have correctly assessed the

case in law, on the basis of the facts as established by that

authority. This is the reason, he submits, why administrative

decisions can only be quashed. He considers that the reservation to

Article 6 (Art. 6), if valid, is not applicable to the present

proceedings.

The Commission finds that this complaint raises complex issues

of law under the Convention, including questions concerning the

Austrian reservations to Articles 5 and 6 (Art. 5, 6) of the

Convention, the determination of which must be reserved for an

examination on the merits.

This part of the application cannot therefore be declared

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

2. As regards the applicant's further complaint that the obligation

to wear a safety belt unjustifiably interfered with his right to

respect for his private life under Article 8 (Art. 8) of the

Convention, and that it constituted discriminatory treatment contrary

to Article 14 (Art. 14) of the Convention, the Commission refers to its

decision on Application No. 8707/79 (Dec. 13.12.79, D.R. 18 p. 255, at

p. 258) where it held that the compulsory use of safety belts, like

other measures of individual or collective protection adopted in the

public interest, in no way affects a person's "private life". Hence

the applicant's complaint is outside the scope of Article 8 (Art. 8),

and consequently also of Article 14 (Art. 14) of the Convention. This

part of the application must accordingly be rejected as being

incompatible ratione materiae with the provisions of the Convention

within the meaning of Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission

unanimously DECLARES INADMISSIBLE the applicant's complaint

concerning the requirement that he wear a seat belt and

by a majority DECLARES ADMISSIBLE the remainder of the

application, without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C. A. NØRGAARD)

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SCHMAUTZER v. AUSTRIA

SCHMAUTZER v. AUSTRIA

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